The Danish Law on Seizing Asylum Seekers’ Assets

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The Danish Parliament recently passed a controversial amendment to the Aliens Act (Bill no. 87) giving police the power to search and confiscate the property of asylum seekers to contribute to expenses associated with their stay in Denmark (BBC). First proposed on 10 December 2015, the bill quickly made international headlines (BBC, Washington Post).

Although the confiscation of asylum seekers’ assets probably violates several human rights, so far the implementation of similar laws in other countries does not seem to have lead to complaints before the European Court of Human Rights (ECtHR). This post provides a short analysis of the recent amendment to the Danish Aliens Act, focusing on its implications under the European Convention on Human Rights (ECHR).

Bill No. 87

Bill no. 87 had its first reading in the Danish Parliament on 13 January 2016. It was rapidly passed into law with a sizable majority (81/27) on 26 January 2016. The bill amends the Danish Aliens Act (Udlændingeloven), bestowing new powers upon the police concerning the seizing of assets of asylum seekers. Even before the amendment, the Aliens Act already stated that asylum seekers could be required to contribute to expenses associated with their stay. The law, however, only allowed asylum seekers to be charged for 90 days and, to our knowledge, it was never enforced. Danish police also had the power to search asylum seekers, in order to find items or documents that could be of importance when processing asylum claims. But Danish police were not allowed to confiscate valuables during such searches. The recent amendment to the law has bestowed this power upon the police and removed existing time limitations.

The new and controversial feature of the Danish Aliens Act, therefore, is not that asylum seekers can be asked to contribute to the expenses associated with their stay in Denmark, or that they can be searched. Rather, the recent amendment gives the police the power to search asylum seekers with the aim of confiscating property.

According to the Danish Integration Ministry, the new rules only apply to assets of “considerable value.” Initially, this term was defined as cash and tangible assets worth more than 3,000 Dkk (€402). The threshold was subsequently increased to 10,000 Dkk (€1,340) per person. Items with sentimental value, such as wedding rings, are exempt altogether. This is largely similar to Swiss or German laws, which already require that asylum seekers’ assets over €900 or €750, respectively, be handed over to immigration authorities.

The Right to Property

The human right to property is not included in all human rights instruments and does not, for example, feature in the ICCPR or ICESCR. Other human rights treaties, however, protect the right to property (e.g. CEDAW and ICRMW), focusing on equality and non-discrimination.

The 1951 Refugee Convention contains several provisions related to property (Articles 13, 18, 19, 29 and 30). Similar to other human rights treaties, the Convention requires States to respect asylum seekers’ property rights based on the principle of non-discrimination. Article 13 specifically provides that States must afford refugees the same rights to moveable and immoveable property as other foreigners.

The principle of non-discrimination does not, however, mean that property can never be confiscated. According to James Hathaway, general principles of law “authorize the subordination of property rights to important social or public needs.” He nevertheless notes: “confiscation imposed only on refugees is discriminatory, thus vitiating any such justification” (The Rights of Refugees under International Law, 2005, p. 523, emphasis added).

The Danish Government’s position is that foreigners who have the means to do so should pay for their stay in asylum centres and costs associated with healthcare. The Minister for Integration has compared asylum seekers to unemployed Danes who, she argues, must sell their assets in order to qualify to receive social benefits. Thus, it appears that, according to the Danish Government, the recent amendment does not discriminate asylum seekers, but rather places them on an equal footing with Danish citizens.

The amendment has received numerous criticisms, including by international and regional human rights bodies. The UNHCR has cautioned that confiscation would place an undue burden “on persons who by definition are vulnerable” (para 51). Nils Muižnieks, the Council of Europe Commissioner for Human Rights, has written to the Danish Minister for Immigration, expressing concern over possible violations of the human right to property. Although not included in the ECHR as originally drafted, the right to property features in the 1952 Additional Protocol 1 to the Convention. Article 1(1) asserts:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

There is no doubt that the confiscation of cash or other assets is an interference with the right to property, as defined in Additional Protocol 1. The ECtHR generally leaves its parties a broad margin of appreciation to regulate and control property. In Sporrong and Lönnroth, however, the Court famously specified that it:

…must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights… (para. 69)

Importantly, the Court highlighted that a fair balance is not struck where an individual has to bear an “excessive burden” compared to other members of society (para. 73).

In addition to striking a fair balance between competing interests, any interference with the right to property must be in accordance with domestic and international law and serve a legitimate aim. In James and Others, the ECtHR noted:

The taking of property in pursuance of a policy calculated to enhance social justice within the community can properly be described as being ‘in the public interest.’

Whether the aims of the Danish Government in relation to seizing the assets of asylum seekers can be qualified as “social justice” seems doubtful. Asylum seekers and refugees are generally considered a particularly underprivileged and vulnerable group in need of special protection, as the ECtHR stressed in MSS v. Belgium and Greece (para. 251).

Stripping people in search of international protection of their assets to pay for the costs of their reception does not seem to strike a fair balance between community and individual interests. This is especially so when one considers that the amount of money collected by seizing the assets of asylum seekers is likely to be modest. In 2015, the Swiss Government reportedly collected a total of 210,000 Swiss francs (€200,000) from 112 individuals.

Furthermore, confiscatory schemes targeted only at asylum seekers are likely to breach the prohibition of discrimination enshrined in Article 14 of the ECHR. One may argue that asylum seekers are not in a “comparable” situation to nationals, as they do not enjoy the same rights. Some rights, like the right to vote, are generally limited to nationals and, under the ECHR, asylum seekers have no right of access to the territory of State Parties. Most rights under the ECHR do not, however, allow any discrimination. Instead, the rights of everyone within the jurisdiction of a State Party, regardless of status, must be secured (Article 1 ECHR).

The rationale of the recent amendment to the Danish Aliens Act also deserves some consideration. The Danish Government has several times emphasised that the purpose of the amendment is to ensure that asylum seekers “pay their fair share.” But how they will be charged is not entirely clear. And unlike Swiss law, Danish law makes no provisions for returning asylum seekers’ confiscated assets, if they decide to leave Denmark. These details are likely to be crucial in any ECtHR’s assessment on whether the new rules are discriminatory or disproportionate. Compliance with the ECHR, however, is unlikely to have been a priority for Danish law-makers voting on Bill No. 87. Some have persuasively suggested the value of the bill is largely symbolic, and a way to send a signal to prospective asylum seekers.

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Jakob Cornides says

January 27, 2016

You sure might say that depriving an asylum seekers of any assets they might have brought along is un-generous. But a "human rights violation"? That seems quite a far shot.

I'm not even sure whether you can appropriately speak of confiscation. By that term I would understand the taking of a person's property without giving it anything (of equivalent value) in return. So when Nazi Germany seized the property of Jews, or Communist governments in the Soviet bloc seized the property of aristocrats, industrialists, and the bourgeoisie, that was a clear case of confiscation. So was the confiscation of the property of ethnic in Czechoslovakia, Poland, and other countries after WWII.

But the argument of the Danish government is that they are not expropriating asylum seekers, but rather asking them to pay for the material benefits (housing, food, health care, etc.) they are receiving. Un-generous maybe, but clearly not an expropriation under any correct understanding of the relevant human rights provisions.

You might also look at this issue from a more general angle: should the welfare state not focus on helping only those who really need it? If so, does this not imply excluding from social benefits all those who can afford to pay for themselves?

In a country like Germany, people will be sustained by the state under the "Hartz IV" scheme only if they have no assets they could live on, or after those assets have been spent: you can't live off public welfare and at the same time own a huge bank account. In the same vein, children are in principle expected to spend their assets to pay for necessary healthcare for their elderly parents - even if that means a sacrifice for them. It would overstretch the principle of solidarity to make the rest of society pay when in fact the family does dispose of the necessary assets to sustain itself. The wider society can be asked to intervene only where solidarity within the family is not sufficient to solve the problem.

So, is your criticism of the Danish (Swiss, German) law not based on a somewhat overstretched idea of solidarity?

In any case, the debate seems rather theorethical. Most asylum seekers do not bring a lot of assets, if any. This measure will not significantly reduce the cost of accomodating refugees; it rather appears to be a concession to public opinion.

Juan M. Amaya-Castro says

January 28, 2016

I find it hard to believe that Danish citizens have to hand over all assets worth more than 3,000 Dkk (€402) in order to receive social services, and so to say that the Danish state "places them on an equal footing with Danish citizens" is frankly ludicrous. Moreover, Danish citizens do not have to hand over anything; they only acquire the right to certain types of social assistance if they do not have real property, such as a house, or over a specific amount of assets that is much higher than 400 Euro. Equating them with Danish citizens would be a completely different story, and would have to involve an extensive review of assets held, worldwide. Were Danish citizens to be treated in this way, there would be mayhem.

Re: Jakob Cornides, if the point is to 'ask them to pay for material benefits', then the proper way of doing this is to hand them the bill, not to randomly take possession of their assets. You can deny them further services if they do not pay, perhaps, but forcing them to use certain services and taking assets as 'payment' for them is what is called a 'shakedown'. In this case, the shakedown is particularly egregious, because the threshold is so low and clearly targeted at people who don't have much, and who are purportedly in danger if turned away. The tragic irony of this measure is that Denmark is now dissuading asylum seekers who might become consumers or even entrepreneurs because they bring money, and you're not dissuading, perhaps even attracting more of those who will be all the more dependent on the Danish state because they have nothing.

This is a nasty piece of legislation that symbolically constructs asylum seekers as profiteering from the international refugee protection regime, and hereby weakens their right to non refoulement. In addition, it clearly discriminates in how property and possessions are protected, by treating asylum seekers radically different from other migrants and from national citizens. It is for a reason that the reaction to this measure around the world has been of shock and dismay. Let us hope that the European human rights machinery corrects this flagrant violation of international human rights and refugee law. After all, the ECHR calls itself 'Europe's conscience'.

Eric Fripp says

January 28, 2016

I disagree strongly with Mr Cornides on the overall position regarding taking of property- without becoming overly legalistic, whether an act involving taking contravenes international law surely depends in part upon such matters as who is doing it and the purpose and manner of the doing. Per Oppenheim's International Law, 9th edn, vol 1, §407 'The rule is clearly established that a state is bound to respect the property of aliens, and that aliens for their part have the right to peaceful enjoyment of their property' (p912). The editors note that the rule 'is qualified to an extent which is not wholly clear' (p912), and then, using the term 'expropriation' as subsuming subspecies including confiscation (taking without compensation), note the importance of context: 'The question [of whether there is expropriation contra international law] cannot be answered in the abstract, but only on the basis of particular circumstances and in the context of particular purposes' (p917).

So for instance the State legitimately collects taxes for its own purposes in the interests of its members. Accordingly it may require me to report my income and to file tax returns and payments. That is somewhat different from sweeping up large numbers of people and taking their assets (save wedding rings and similar- presumably the degree of 'personal' quality attributed to any particular item of jewellery or property in this context becomes the subject of a body of public law, as does the question of valuation). However what might appear wrong is the arbitrariness of the latter case.

Whilst it seems undeniable that the subject matter is within the scope of established international law standards, leaving aside the question of whether there is a breach, I can find a small area of common ground with the previous correspondent on the issue of whether confiscation (expropriation) is the right starting point.

If I am stopped forcibly by a gang and my property is taken, that does involve an expropriation (in my view, and with all respect to the previous correspondent, it would not cease to be an appropriation if the gang then gave me a sandwich, or offered me a chance to join). But the expropriation represents only a part of the picture- the starting point is not its loss but the way I, a human being, have been treated by others. The forced subjection is degrading. If additionally it occurs because of some relevant discrimination- because I am a non-national or non-indigenous to the territory, or an applicant for, dare I say it, asylum- that also seems objectionable. So perhaps the better starting point is articles 7 and 26 ICCPR whether alone or informing interpretation of analogous provisions in ECHR. To start by focussing upon the taking of property is to adopt too low a target. To adopt a historical analogy I would respectfully suggest that reflective people will think an event like Kristallnacht objectionable not just, or even primarily, because of the destruction or theft of property, but rather by reason of the arbitrary treatment of one group of human beings by other human beings.

Pok Yin Stephenson Chow says

January 28, 2016

I would just like to add that the law is likely discriminatory because of how execution is envisaged. The amendment gives the police the power to search asylum seekers with the aim of confiscating property. I suppose that there is no Danish law that gives the police the power to search a Danish citizen with the aim of confiscating property (cf. to the power to search a subject when he/she is reasonably suspected of carrying a contraband).
Other than discrimination, one may further argue a potential violation of the right to privacy. A discriminatory search in this context may also be considered an infringement upon the freedom from degrading treatment.

Jakob Cornides says

February 3, 2016

Mr Fripp is using the term "expropriation" in a very un-legal manner.

If somebody steals, or robs, your property, it still remains your legal property. You are not expropriated. "Expropriation" is a legal act by which your property rights are transferred to the state.

Expropriation is not per se a violation of human rights. It can be one if no compensation is given, and if it takes place in a discriminatory way. I don't see how it is discriminatory to say that aliens who want to get security, shelter, food, and healthcare should make a contribution that corresponds to their available means. You may find this un-generous (and I would tend to agree on that), but please don't give in to the temptation of framing everything you don't feel sympathetic with as a human rights violation.